Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #62

[nauticant]

Judgment was handed down on 8 December 2025:

https://assets.publishing.service.gov.uk/media/6936ce28a6fc97b81e57436a/S_Peggie_v_Fife_Health_Board__Dr_Upton.pdf

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), brought claims in the employment tribunal against her employer; Fife Health Board (the Board) and another employee, Dr B Upton. Ms Peggie’s claims are of sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation. Dr Upton claims to be a transwoman, that is observed as male at birth but asserting a female gender identity.

The Employment Tribunal hearing started on Monday 3 February 2025 and was expected to last 2 weeks. However, after 2 weeks it was not complete and it adjourned part-heard. It resumed on 16 July and the last day of evidence was 29 July 2025. It resumed again over 1 to 2 September for closing submissions.
Following handing down of the judgment on 8 December 2025, on 11 December 2025, it was announced by Sandie Peggie and her legal team that they would be pursuing an appeal and it was reported on 3 August 2026 that leave to appeal had been granted with an expectation that the appeal proceedings could take place in court early next year (2027).

The hearing was live tweeted by x.com/tribunaltweets and there's additional information here: tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005 and tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6.

Links to previous threads #1 to #60 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 60: mumsnet.com/talk/womens_rights/5461133-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-60 16 December 2025 to 8 January 2026

Thread 61: mumsnet.com/talk/womens_rights/5472628-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-61 8 January 2026 to 3 August 2026

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Ah yes, I'd forgotten about the proselytising accusation - I read the judgement in detail at the time but some of the finer detail escaped me

1017. The claimant’s comments in our view were broadly similar to cases where proselytizing which led to dismissal was held to be lawful and not discrimination because of religion or belief..........
What the claimant was doing in our view was seeking to impose her view on the second respondent that the second respondent should not be in the changing room.

119 She was in effect challenging its decision directly with the person affected and doing so not with the first respondent which had made the decision.
[which was the recommended way to deal with such problems, wasn't it?]

Proselytizing can be defined as attempting to convert someone from one religion, belief, or opinion to another. It is a term normally used in the religious context, but is not confined to that context. In our view in essentials that is what the claimant sought to do.

The claimant sought to tell a biological male that he should not be in the women's changing room - hardly the same as handing out religious tracts at work or telling colleagues they should believe in the Holy Trinity/alien abduction/that the Royal Family are lizards.
Objecting to Upton's presence was not prompted by a mere 'opinion', SP was invoking what she believed to be her rights.

Apologies for the length of this post. It started simple but turned into War and Peace as I was typing it!

It is easy to see bias when we don't agree with the tribunal's decisions or arguments. The question is whether a fair-minded, informed observer would think the tribunal was biased.

For me, the fundamental problem with the original judgment is that the tribunal misdirected itself when they decided that they could not consider the 1992 Regulations on the grounds that any breach is a criminal offence and was therefore not a matter for an ET. At one level this is understandable. If they had decided that Fife had breached the regulations and found for Sandie on that basis, we would have been in a bit of a pickle if the HSE subsequently sued Fife and the criminal courts decided there had been no breach. However, criminal law is relevant in ETs. If an employer is allowing employees to break the law and that disadvantages some employees, that is significant for an ET. In my view, the ET should have considered the Regulations and interpreted them in light of FWS. However, misdirecting themselves in this way is not evidence of bias. To prove bias you would need to show that they deliberately misdirected themselves so that they could reach a predetermined outcome.

A lot flows from this failure. Absent the 1992 Regulations, there is no requirement for an employer to provide single sex changing rooms. It is therefore not a huge jump to say that an employer can lawfully allow a trans-identifying man to use the female changing rooms. And, if an employer is entitled to do that, Sandie was not asserting a right when she objected to Upton's presence, she was expressing her beliefs.

This is why the arguments put forward for suggesting bias don't mention many of the things that have been brought up on this thread. The arguments that have actually been made by Sandie's lawyers are

• The hallucinated and/or edited quotes. The fact that a quote is incorrect, has been carelessly edited or is entirely invented is not evidence of bias in and of itself. The question is whether any of them led to the tribunal misdirecting itself in law. Three of the hallucinated quotes correctly set out the law, so they cannot possibly support a claim of bias. The others are better in this regard, but Sandie's lawyers need to show that the incorrect quotes contributed to the outcome.
• The fact that the hallucinated quotes came from another judge. The suggestion is clearly that this interaction was improper and the other judge influenced the outcome of this tribunal. However, there does not appear to be any evidence that the interaction was improper, hence the request in paragraph 44 for what amounts to a fishing expedition.
• The tribunal treated calling Upton a man as transphobic and as a hate incident. I think the tribunal were wrong but, having read the paragraphs cited, I'm not sure there is enough there to support a claim of bias.
• The tribunal referred to Sandie's experience of being sexually assaulted as "inappropriate behaviour" and "what she considered to be sexual abuse". Given that the doctor who assaulted her has never been prosecuted, I am not surprised the tribunal used cautious language. It is not for them to decide whether Sandie really was sexually abused.
• The tribunal treated the right of women to single-sex facilities as conditional on disclosing past sexual abuse. Given the tribunal's fundamental error in deciding that Fife could give Upton permission to use the female changing room, what they are essentially saying here is that, without this information, the employer is unable to conduct a proper balancing exercise to decide whether to allow Upton in. I suspect the courts would take the view that this shows the difficulty of the tribunal's incorrect approach rather than being evidence of bias.
• The tribunal found that it was unreasonable for Sandie to perceive Upton to be a greater threat to her than another woman. The tribunal accepted that men are more likely to commit violent offences, including violent sexual offences. However, they did not accept the evidence that this applies equally to trans identifying men due to shortcomings in the paper presented in evidence to support this position. Could this be evidence of bias? Maybe.

There are three other arguments that are redacted, so I can't comment on them. It may be that they are stronger than the arguments we can see. I may be wrong, but I'm not convinced there is enough in the points we can see to support a claim of bias. However, I don't think Tayler's reasons for rejecting this ground stand up to scrutiny as he has mischaracterised the arguments, allowing him to reject them on grounds that are entirely spurious.

I will be interested to see what the Rule 3(10) hearing makes of this.

@prh47bridge Thank you. I always appreciate your view on these threads.

I agree bias is a high bar.

If they had decided that Fife had breached the regulations and found for Sandie on that basis, we would have been in a bit of a pickle if the HSE subsequently sued Fife and the criminal courts decided there had been no breach.

A failure to convict in a criminal court means only that the offence has not been proved beyond reasonable doubt and the state will not impose a criminal sanction. It doesn't mean the defendant is innocent and must be immune to any and all consequences in every forum.

Foran's example was an employee accused of theft: Do you need to wait for someone to be convicted before you sack them for stealing from you and for an Employment Tribunal to back your decision?

Apologies - I should have been clearer. I was imagining a situation where the ET decided that the Regulations require single sex changing rooms, but the criminal courts decide that they do not - that an employer can allow trans-identifying men to use the female changing room. I agree that should not happen, but I can imagine the ET being concerned that, if they adjudicated on the meaning of the 1992 Regulations, the criminal courts may disagree.

The part about proselytising rather makes my blood boil too.

I suspect it was partly because he needed his eyes and ears tested, and simply can’t put himself in a commoner’s shoes. I seem to recall he thought Dr Upton looked like a woman and somehow missed the fake high voice(!).

Dr. Upton denied he was male, and Sandy then repeated. A lawyer probably would have found a neutral or vague way of putting it unlike Sandy a nurse put in the spot who is more straight talking.

That said, the appeal could ultimately be a good thing. If the EAT clarifies the legal principle, it could establish binding precedent, which is far more significant than an individual Tribunal judgment anyway.

The elements of the judgment that bother me the most are largely in the finding of fact. The EAT will not revisit the finding of fact. They can order a full merits re-hearing or re-interpret the law.

A full merits re-hearing would be a complete circus.

I think a public hearing of all the errors that go one way in the understanding of both real and fake law could be very good CPD for the judiciary, whether the claim succeeds or fails!

I have received the Operational Note with instructions on how to apply for online access to the RCN case. Am I allowed to post the text here? I haven't seen it on any public website yet, so am being cautious for now.

If it's just the instructions to apply, not an actual joining link, I don't think that would be a problem.

Thanks. There is no joining link untill very close to the hearing.

Instructions to apply for remote access to Sandie Peggie v RCN attached as image below.

I don’t think I understand that concern. If a tribunal misinterprets a law, any law, on which it depends in order to reach its conclusions, it is subject to appeal. This would apply to the Workplace Regulations as much as the Equality Act. In the absence of a binding clear interpretation of the WR, some court, somewhere has to go first. I can’t discern any reason why the ET shouldn’t have a first crack at it. Goodness knows nobody else has, since 1992, so we shall be waiting a long time otherwise.

A subsequent criminal trial in a magistrates court might have that court come up with a different interpretation, but frankly, so what if it does? The correct path for such a disagreement is always an appeal.

I am not saying it is a concern, but the issue is that an appeal from an ET on the grounds that it got the criminal law wrong would go to the EAT, which is also a civil court. If they got it wrong, the next step is the Court of Appeal (Civil Division). It is only when you get to the Supreme Court that the two branches come together. Unless someone is determined to pursue a case all the way to the Supreme Court and the Supreme Court is willing to take it, there would not be any ruling that was binding on both branches. There is, therefore, a danger that the civil courts could end up pursuing a different interpretation of criminal law to the criminal courts unless the criminal courts have already ruled on the interpretation of the relevant law and the civil courts follow that interpretation.

The EAT (or any other higher civil court) could voluntarily adopt a future decision of the magistrate’s court or Crown Court to overturn the ET, even if a parallel case in the criminal court wasn’t binding on it.

If each branch of the judiciary, in full knowledge of the other’s different interpretation, was determined that its own lower court had it correct, the matter probably should end up at the Supreme Court!

It seems to me that, albeit as very much not an expert in constitutional affairs, the “risk” of some unsatisfactory outcome is very low and without some action from the HSE to which it hasn’t risen in thirty five years, the Workplace Regulations are otherwise a de facto dead letter and pointless.

Just catching up. I may have misconstrued the conversation re the juxtaposition between criminal and legal proceedings.

i watched Micheal Foran on his analysis of the appeal.

he said it was ridiculous for the tribunal to ignore the WP regulations.

because following that logic an employee could complain of un fair dismissal, the employer defence being well he stole from me.

and the judge determining that the act of theft was beyond his jurisdiction, and therefore held that the dismissal was unfair. That would be bonkers.

The judges in tribunals, and other proceedings such as family court can make findings of fact such as a rape has occurred that would not pass the threshold in criminal proceedings. As the threshold in civil law is the balance of probabilities.

the issue of the HSE failing to assert WPR does not make it a dead letter.

i do not agree that the various wings of justice sit in silos, they operate on different thresholds.

No, they do not sit in silos and I agree with Foran that the ET was wrong to refuse to consider the Regulations. I am just speculating as to why they may have done so.

The question here is nothing to do with the differing thresholds. It is about the interpretation of the Regulations. As far as I am aware, there have been no cases in the criminal courts under the Regulations since FWS. The criminal courts have therefore not decided whether the references to "women" in the 1992 Regulations include trans-identifying men. The ET may have felt that, absent such a decision, it was not for them, as a civil court to decide how the Regulations should be interpreted.

My personal view is that there is no doubt as to how the 1992 Regulations should be interpreted in the light of FWS, so they could safely have assumed that "women" in the Regulations means "biological women". I therefore do not think that there would have been any potential for problems if they had taken it on themselves to decide how the Regulations should be interpreted (provided, of course, they got it right).

the issue of the HSE failing to assert WPR does not make it a dead letter.

If the HSE as the only body that can enforce the regulation consistently fails to enforce this element of it, and if every civil tribunal and court elects not to attempt to interpret this element of regulation because no criminal court has yet done so - then it very much is a dead letter. It might as well not exist.

Somebody has to go first, we can’t do this “after you! No, please, after you!” forever.

Unposted, perhaps, rather than dead.

... and if every civil tribunal and court elects not to attempt to interpret this element of regulation because no criminal court has yet done so - then it very much is a dead letter. It might as well not exist.

But surely the Peggie court's decision to set the 1992 regs aside on these grounds is so obviously perverse (not in a lawyerly sense but in a common sense way) that there is little likelihood of it being a commonly resorted to strategy - or even of it ever being adopted again?

Surely the 1992 Regs have featured in other Employment Tribunal cases somewhere along the line? They set out such a comprehensive set of requirements that they must form a core part of very many potential disputes?

And the Foran point - about tribunals necessarily having to decide matters of fact relating to criminal law - is so obvious that it barely needs saying.

And in any case, it seems that the reasoning which caused the Supreme Court to decide as it did applies a fortiori to the 1992 regs. This is so clear that a judge immediately looks suspect as soon as he treats that as an open question?

These three points together must mean that an ET judge would not repeat the Peggie judge's manoeuvre unless s/he was prepared to look extremely cynical or extremely stupid - when the manoeuvre collided with legal reality in a higher court.

This is especially true now that society is beginning the climb down from peak trans. It already was, of course, when the Peggie judge judged, but I think that (for whatever reasons - biased inclusivity training? immersion in the strange nature of SNP-led civil establishment) his psyche was slow to adapt. He tried to keep on stepping upwards even at the trans peak, ran out of ground and tumbled badly.

It seems odd to suggest that HSE regs can be ignored if they aren’t enforced by the HSE. That puts a very high burden on the HSE.

Agreed.

HSE prefer to use verbal advice or improvement notices when dealing with breaches of regulations 20, 21 and 24 (these being the regulations that require separate facilities based on sex). Prosecutions under these provisions are extremely rare, but that doesn't mean the Regulations are a dead letter.

Maybe we can at least agree that because the HSE hasn’t prosecuted anyone, the regulations aren’t as useful as they could be, at least not for as long as the ET decides it’s not open to itself to be the first judicial forum to interpret them.

Didn’t the High Court interpret the regs in line with the SC FWS ruling in its judgment on the GLPs unsuccessful attempt to have the EHRCs interim guidance ruled unlawful? Judgment made after the Peggie one but it’s here now.